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Responding to the Risk of Infectious Disease in Public Schools

As stories about the devastating potential effects of infectious disease emerge and public concern

rises, school districts—even districts not yet affected—feel called to action to do what is possible

to prevent the spread of infectious disease and to reassure the school community that schools are

safe for children and staff. Most recently, as concerns about the spread of Ebola and Enterovirus

grip our communities, school districts should offer assurance that local officials are aware of

these issues and prepared to respond with a clear plan of action. Similar to planning for the flu

season, school districts should review infectious disease response plans each school year. School

districts should also continue to monitor available resources to ensure that the most current

guidance is followed. Links to general resources regarding infectious disease control are

included in this memo, and these resources will be updated regularly as new information

becomes available.

Understanding Infectious Disease

Every year school districts address concerns about influenza and other communicable diseases.

Public concern is heightened, however, when a disease is unfamiliar and potentially deadly.

Public health agencies provide extensive information about the risks and preventative measures

for infectious disease. The following are of particular interest at this time:

Ebola: Information regarding Ebola can be found from the Center for Disease Control and

Prevention (CDC) and Texas Department of State Health Services (DSHS).

CDC: Ebola Virus Disease: www.cdc.gov/vhf/ebola/index.html

DSHS: www.dshs.state.tx.us/.

The Ebola virus is a rare and deadly disease caused by infection with one of the Ebola virus

strains. The Ebola virus has been found in several West African countries and most recently has

been found in individuals living in the United States. On September 30, 2014, the CDC

confirmed the first travel-associated case of Ebola to be diagnosed in the United States. Two

health care providers who had contact with the infected individual also contracted the disease.

http://www.cdc.gov/vhf/ebola/index.html

http://www.dshs.state.tx.us/


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Ebola can only spread from one person to another after symptoms begin. The symptoms of

Ebola include fever, diarrhea, vomiting, stomach pain, head ache, muscle pain, and unexplained

bruising or bleeding. The CDC recently revised its advisory to watch for fever over 100.4

(lowered from 101.5). Typically symptoms begin to show within 2–21 days after exposure to the

disease. Ebola is spread through direct contact (through broken skin or mucous membranes in,

for example, the eyes, nose, or mouth) with:

• blood or body fluids (including but not limited to urine, saliva, sweat, feces, vomit, breast

milk, and semen) of a person who is sick with Ebola;

• objects (like needles and syringes) that have been contaminated with the virus; and

• infected animals.

According to the CDC, Ebola is not spread through the air or by water, or in general, by food.

While no vaccine or antibiotic currently exists to treat or prevent Ebola, individuals exposed or

suspected of exposure should take extra precautions to practice careful hygiene, monitor their

health for 21 days, and seek medical assistance immediately if symptoms develop. CDC Ebola

Virus Prevention, available at: www.cdc.gov/vhf/ebola/prevention/index.html.

Enterovirus: Enteroviruses are relatively common viruses, particularly during flu season.

Recently a particular virus, Enterovirus-D68, has been linked to the deaths of children in the

United States. Mild symptoms may include fever, runny nose, sneezing, cough, and body and

muscle aches. Severe symptoms may include wheezing and difficulty breathing. The virus

spreads from person to person when an infected person coughs, sneezes, or touches a surface that

is then touched by others. CDC Enterovirus D68 Information, available at www.cdc.gov/non-

polio-enterovirus/about/EV-D68.html.

Influenza: Common flu continues to present a significant health risk to young children. The

CDC encourages vaccination and personal hygiene practices to prevent the spread of the flu.

CDC Seasonal Influenza Information for Schools & Childcare Providers, available at

www.cdc.gov/flu/school/index.htm.

Communicating with Staff, Students, Parents, and the Media

Q: What can a school district communicate now, even before a concern arises?

A: School districts should provide information to parents, students, and personnel about the facts

regarding infectious disease. Clear factual communications can calm unsubstantiated fears

and rumors that commonly arise at the onset of an outbreak. Providing facts about infectious

diseases from verifiable sources can assist the school community to have confidence that

schools and buses are safe for children and staff. Dallas ISD created a classroom guidance

lesson regarding Ebola, available at www.dallasisd.org/Page/32275.

http://www.cdc.gov/vhf/ebola/prevention/index.html

http://www.cdc.gov/non-polio-enterovirus/about/EV-D68.html


http://www.cdc.gov/flu/school/index.htm

http://www.dallasisd.org/Page/32275


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In addition, school district communications should emphasize how all members of the school

community can help stop the spread of a disease through personal responsibility, including

hand washing, covering coughs or sneezes, getting immediate medical attention if symptoms

develop, and avoiding contact with other people if necessary. Emphasize that staff and

students are asked to stay home if they are exhibiting symptoms. Remind parents and staff

about your procedures for documenting an excused absence for illness.

Finally, ask that parents and staff inform you about any personal contact they have with the

CDC, DSHS, or local health department about risk of exposure. In the recent Ebola

incidents, these public health agencies have been casting a wide net to identify individuals

who passed through a “zone of concern,” meaning within three feet of an Ebola patient

currently exhibiting symptoms. Outreach from public health officials is typically to affected

individuals and the local health department; as a result, schools may receive this information

second hand. If you learn of a concern for a local individual, follow up by contacting the

local health department or CDC, as described below under Emergency Operations Planning.

Q: What approach should a school district adopt in responding to the media in the event of an

issue in the community?

A: In addition to your existing protocols for responding to the press and the public, publicity

regarding a health scare may require additional steps by the district to both effectively

communicate with your community and maintain security and order at your school facilities.

Districts that are home to students or employees who have been identified as potentially passing

near an infected individual have found it necessary to increase security and create a perimeter

around school facilities. Media outlets have wanted access to school buildings to film

background footage of campus buildings and students passing by. If possible, you might choose

to work with the media to give them access to this type of footage without disrupting school

operations. Similarly, media will be seeking interviews with a variety of school personnel. To

the extent you can make appropriate personnel available at regular intervals for interviews, you

may gain an additional means of reaching parents with your message.

Dallas ISD was the first Texas school district to experience media coverage related to students

placed under observation for potential exposure to Ebola. District officials resolved that as new

information became available, they would use their available communication tools to inform

parents first, and the media second. The district went to great lengths to give the media the

information they needed to keep the public informed, but the district did not allow reporters and

cameras on campus. Instead the district itself filmed campus footage and interviews and released

the content for the media to use. Finally, the district made it a point to show that high-level staff

members were present at affected campuses, signaling that they felt safe, and parents should too.

The district’s proactive, cooperative media plan minimized disruption, maximized

communications with parents, and prevented disputes over Public Information Act requests.


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Q: What steps should one school district take to work with another school district when the

districts are scheduled to compete in athletics or otherwise visit school facilities and a

potential concern has been raised at the host district?

A: In the face of a legitimate risk of contagion, nonessential travel for sports, other

competitions, or field trips may be cancelled by a district superintendent or designee. The

superintendent, athletic director, or other appropriate administrator should verify with the

appropriate administrator at the host district that there is a legitimate cause for concern.

Factual information from public health and health care professionals should govern decision

making with respect to not only your home district but also other districts and their students.

Emergency Operations Planning

Q: Does the school district need to create a specific emergency plan to address the spread of

infectious diseases?

A: A school district does not need to create a new emergency plan if they already have an

emergency operations plan (EOP) in place. The EOP should already contain information on

addressing a health risk to the school community, such as an outbreak of infectious disease.

Each district must adopt and implement a multihazard emergency operations plan for use in

the district’s facilities. The plan must address mitigation, preparedness, response, and

recovery as defined by the commissioner of education in conjunction with the governor’s

office of homeland security. The plan must provide for: (1) district employee training in

responding to an emergency; (2) mandatory school drills and exercises to prepare students

and employees for responding to an emergency; (3) measures to ensure coordination with the

DSHS and local emergency management agencies, law enforcement, health departments, and

fire departments in the event of an emergency; and (4) the implementation of a required

safety and security audit. See TASB Policy CKC(LEGAL).

Members of the TASB Risk Management Fund have sample emergency procedures and

guidelines to address a health or safety emergency, available at: www.tasbrmf.org/Member-

Service-Center/Loss-Prevention/Hot-Topics/Infectious-Disease-Update.aspx.

Additionally, the Texas School Safety Center has prepared a school-based emergency

management toolkit to provide guidance and information for schools on addressing and

preparing for an emergency. School districts are encouraged to use the toolkit as a starting

point in preparing or updating the district’s EOP, available at txssc.txstate.edu/tools/.

http://www.tasbrmf.org/Member-Service-Center/Loss-Prevention/Hot-Topics/Infectious-Disease-Update.aspx

http://www.tasbrmf.org/Member-Service-Center/Loss-Prevention/Hot-Topics/Infectious-Disease-Update.aspx

http://txssc.txstate.edu/tools/


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Q: Should a school district contact local health officials when there is a concern regarding

the spread of infectious disease in the school community?

A: A school district’s EOP requires the district to have measures in place for coordinating with

necessary local government agencies. In the event of a concern regarding the spread of

contagious disease, the school district should be in communication with the local health

department as well as the CDC. See the DSHS Website to locate your school district’s local

health department, www.dshs.state.tx.us/regions/lhds.shtm.

Typically, in instances of a documented outbreak, such as the recent concern over the spread of

Ebola, the local health department is working in conjunction with the CDC to identify affected

individuals and implement a care and isolation plan for the identified individuals. The local

health department or the CDC may contact the school district to inform them of this

information and the identity of the student or the employee under observation. If a

student/parent or employee makes a self-report to the school district of a concern of infection,

the school district should immediately contact the local health department for guidance.

Depending on the circumstances, the school district may be asked to identify other students

or staff who came in close contact or proximity with the individual under observation. The

CDC or local health department may require the school district to close certain campuses or

portions of a school district depending on the nature of the disease and risk of infection.

Q: What steps should the school district take to disinfect or sanitize school buildings and

vehicles?

A: The degree of disinfection and sterilization appropriate on school campuses and vehicles

depends on whether a school district experienced a documented case of exposure to an

infectious disease. In the absence of a documented case of active infection on school

property, school districts may determine that regular cleaning and disinfecting protocols are

adequate, with additional directed cleaning as a preventative measure. Cleaning can be

accomplished through the district’s regular janitorial staff wearing routine protective gear

such as dust masks, gloves, and eye goggles. A district may consider using a cleaning

service or additional staff, as needed.

If a district were to experience a documented case of active infection of Ebola or another

deadly disease on school property, the school district should work with local health officials

and the CDC to determine a more intensive disinfecting and sterilizing process. This may

involve using a professional cleaning company equipped with medical grade cleaning

supplies and personal protective equipment.

The CDC has released guidance on cleaning and sanitizing classrooms in response to a flu

outbreak or other infectious disease, available at:

www.cdc.gov/flu/pdf/freeresources/updated/cleaning_disinfecting_schools.pdf.

http://www.dshs.state.tx.us/regions/lhds.shtm

http://www.cdc.gov/flu/pdf/freeresources/updated/cleaning_disinfecting_schools.pdf


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Additional guidance on cleaning and sanitizing classrooms is provided by the National

Education Association Health Information Network, available at: http://neahealthyfutures.org/get-informed/school-safety/environmental-health/clean-schools/.

Student Health, Attendance, and Privacy Issues

Q: What inquiries may a school district make regarding whether students have traveled to

affected locations or been exposed to an infectious disease?

A: A school district may make inquiries of students in order to determine the likelihood of

exposure to an infectious disease, such as Ebola, if in coordination with local health officials

the school district determines such screenings or questions are appropriate. A general

questionnaire may be sent to all students and/or all new students. A school district may not

use a person’s race or national origin to determine which students will be asked to complete a

questionnaire. TASB Legal Services has prepared a sample questionnaire for use by school

districts, included at the end of this memorandum.

Q: Can the school district conduct a health screening of a student exhibiting symptoms of

infectious disease?

A: School personnel may refer a student to the school nurse or campus office as they would in

any instance when a student complains of feeling ill. The school nurse or other staff member

may take the student’s temperature and conduct a medical screening. Some school districts

may have a questionnaire for school nurses to follow in determining whether a student poses

a risk of infection. For example, Dallas ISD has posted its nurse screening guidelines for

Ebola online, available at: www.dallasisd.org/Page/32275.

If more intrusive medical procedures—such as blood samples or throat swabs—are needed to

determine a student’s condition, the student’s parent should be contacted and the student

should be referred to the student’s medical professional or local health department for further

screening. School districts may want to be prepared to share resources with students,

parents, and staff about infectious disease and where to seek further medical care or

information. Again, encourage students and staff to take personal responsibility to monitor

their health and stay home if they feel ill.

The Texas School Nurses Organization (TSNO) has issued guidance for school nurses

regarding the recent Ebola virus. The TSNO recommends school nurses work with school

administrators to develop enrollment procedures for students suspected of coming in contact

with the disease or with recent travel from an affected region. For more information on the

TSNO guidance, see: txsno.org/files/EHF2100814.pdf.

http://neahealthyfutures.org/get-informed/school-safety/environmental-health/clean-schools/


http://txsno.org/files/EHF2100814.pdf


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Q: When should a student stay home?

A: If a student has been experiencing symptoms of an infectious disease, the student should stay

home until the student is symptom free and/or cleared by a medical professional to return to

school. The district should follow normal procedures for requiring a doctor’s note when a

student is out sick in these instances. If, on the other hand, a school district becomes aware

that a student has an infectious disease or has a risk of infectious disease requiring

monitoring by local health officials, the student must stay home until he or she is cleared by

the health department as safe to return to the school environment.

A school district may exclude a student from attendance if the school determines that the

student is currently showing symptoms of illness, including a fever. See TASB Policy

FFAD(LEGAL).

On the other hand, if rumors or suspicions arise regarding the exposure of a student who is

not currently sick, the school district should contact the local health department for more

information. Absent guidance from public health officials or a health care provider, schools

should not exclude from attendance students who are not showing symptoms of illness. See

the DSHS Website to locate the school district’s local area health department,

www.dshs.state.tx.us/regions/lhds.shtm.

Q: If a student stays home because he or she has contracted an infectious disease or is under

observation, how can a school district continue to provide educational services?

A: A student may continue to receive instruction at home during the period the student is not

attending school. Depending on the length of the student’s absence, continuing educational

services may be as simple as sending assignments home or as elaborate as creating a home

learning environment by providing instructional technology (such as a laptop or tablet and

home internet access), with the option for live instruction via teleconference or

videoconferencing software (such as Skype or Face Time) or distance learning through the

Texas Virtual School Network (TxVSN) or other means. When students in Dallas ISD

recently stayed home from school for three weeks during an observation period, the district

provided each student a laptop, Internet hot spot, books, e-mail, and live instruction through a

home learning kit, which the district assembled and gave to the CDC for distribution to the

students’ homes.

Remote conferencing: Even if students’ absences are excused during a period of illness or

observation, school districts are eligible for ADA funding only in accordance with rules set

by the Texas Education Agency (TEA) in the Student Attendance Accounting Handbook.

Claiming ADA for instruction provided during a time of confinement will likely require a

waiver from TEA.

http://www.dshs.state.tx.us/regions/lhds.shtm


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With a TEA waiver, a district may use remote conferencing to provide instruction, even for a

period too brief to qualify for homebound services. Remote conferencing means remote

instruction in which a student at an off-campus location is able to virtually participate in

classes provided on the student’s campus. If a district provides instruction through remote

conferencing to a regular education student, the district may, with a TEA waiver, count the

student in attendance for funding purposes, provided:

• the student is unable to attend school because of a temporary medical condition; and

• the student’s temporary medical condition is documented by a physician licensed to

practice in the United States. See the TEA Student Attendance Accounting Handbook,

available at: www.tea.state.tx.us/index2.aspx?id=7739&menu_id=645&menu_id2=789.

Distance learning: Distance learning, such as the TxVSN, is also funded in accordance with

rules established by TEA. See TASB Policy EHDE(LEGAL).

Homebound instruction: A student is eligible for general education homebound services

when the student: (1) is expected to be confined at home or in a hospital bed for a minimum

of four weeks (the four weeks need not be consecutive); (2) the student is confined at home

or in a hospital for medical reasons only; and (3) the student’s medical condition is

documented by a physician licensed to practice in the United States.

A student eligible for homebound services must be provided educational services by a certified

general education teacher. The teacher must provide instruction in all of the student’s core

academic instruction courses. A student provided with homebound services retains the same

ADA eligibility he or she had prior to receiving homebound services. Instruction must be

provided in person, absent a waiver allowing remote instruction. Remote instruction means

instruction provided through a technology that allows for real-time, two-way interaction

between a student and teacher who are in different physical locations. The technology must

allow for both two-way audio and two-way video interaction.

Special education: Students who are eligible for special education services should continue

to receive those services to the best of the district’s ability in light of the circumstances. If a

special education student will be receiving services through remote conferencing or remote

homebound instruction, the student’s Admission, Review, and Dismissal (ARD) Committee

should determine how best to meet the student’s needs in the temporary setting. To be

eligible for funding:

• the student’s ARD committee must have determined, in a manner consistent with state

and federal law (including requirements for a Free Appropriate Public Education and the

Least Restrictive Environment), that the remote instruction to be provided meets the

needs of the student; and

• the ARD committee must have documented that determination in the student’s

individualized education program (IEP).

http://www.tea.state.tx.us/index2.aspx?id=7739&menu_id=645&menu_id2=789


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For more information regarding homebound services, remote instruction, and the submission

of waivers, see the TEA’s Student Attendance Accounting Handbook, available at:

www.tea.state.tx.us/index2.aspx?id=7739&menu_id=645&menu_id2=789.

TEA has addressed attendance matters in a recent To the Administrator Addressed letter

entitled Guidance on Certain Education Questions Related to Ebola Virus in Texas, available

at www.tea.state.tx.us/index4.aspx?id=25769818382.

Q: How should school officials prepare for a student’s return to school after a period of

quarantine or observation?

A: The school district should convene necessary school personnel to prepare for students’ arrival

back into the classroom environment after a period of quarantine or observation. Ideally,

counselors, teachers, and other student support staff and/or mental health professionals

should work together to serve affected students and ensure a smooth transition back to the

school environment.

Part of ensuring a smooth return includes completing staff and student training to explain

why returning students present no risk to the school environment and to emphasize the

district’s policies against bullying, harassment, and retaliation.

The school district should coordinate its re-entry plan with the students and the students’

parents. The school district may want to check in with the students and their parents

periodically to ensure that the students are not falling behind in course work or experiencing

negative reactions from peers.

Dallas ISD has created a helpful guide to Re-Entry of Students on Watch List, available at:

www.dallasisd.org/Page/32275.

Q: What happens to a school district’s funding if campuses are temporarily closed due to an

outbreak or preventative measures?

A: School districts must provide students at least 180 days of instruction per school year. Tex.

Educ. Code § 25.081(a). The Texas commissioner of education, however, may approve

fewer days of instruction for students if disaster, flood, extreme weather conditions, fuel

curtailment, or another calamity causes the closing of schools. Tex. Educ. Code § 25.081(b).

TEA provides applications that districts may complete to request a waiver for missed

instructional days due to inclement weather or health and safety-related reasons, among other

causes. TEA’s Website specifies, however, that the first two missed days of instruction must

be made up. TEA also provides an application that a district may complete to excuse certain

instructional days from average daily attendance ADA calculations. This waiver is for

http://www.tea.state.tx.us/index2.aspx?id=7739&menu_id=645&menu_id2=789

http://www.tea.state.tx.us/index4.aspx?id=25769818382



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instructional days with low attendance due to inclement weather or health and safety-related

reasons, among other causes, if the attendance level is at least ten percentage points below

the last school year’s average attendance. The forms to request these waivers can be found at

www.tea.state.tx.us/index2.aspx?id=7089&menu_id=932.

Q: When is a student’s absence due to illness or observation excused?

A: In accordance with school district policy, a school official may excuse the temporary absence

of a student for any acceptable reason including illness, quarantine, or exclusion during a

period of observation. However, the student will not be counted as present for funding

purposes absent an exception (like homebound instruction).

If students in a school district have been identified by public health officials as having had a

risk of exposure to infectious disease, a school district may experience a drop in attendance

due to concern about contagion. For example, school districts with students (or students with

relatives) who were identified as having had a risk of exposure to Ebola experienced a slight,

temporary drop in attendance following media reports about the concern. Once factual

information was provided about the conditions under which Ebola spreads (i.e., that

transmission is possible only through contact with the bodily fluids of a person currently

exhibiting symptoms), school attendance returned to normal. If a district chooses to excuse

absences for the day following a public announcement, while a situation is being investigated

and stabilized, the district has that authority. Once the district has announced that classes

will resume as normal, however, student absences unrelated to actual illness or periods of

observation should be addressed as any other absence under the school district’s policies and

procedures. Repeated absences without excuse may violate compulsory attendance laws

and/or affect a student’s ability to receive credit or final grades for classes. Tex. Educ. Code

§ 25.092; TASB Policies FEA, FEB, and FEC.

Q: If a local health authority has requested information about students in response to an

investigation into the spread of the infectious disease, is the school district required to comply?

A: The school district should provide requested information to local or state health authorities if

the request is to protect the health and safety of the student or others. The Family

Educational Rights and Privacy Act (FERPA) generally prohibits the release of personally

identifiable student information contained in education records unless the student’s parent or

guardian authorizes the release of such information or an exception to this requirement exists.

20 U.S.C. § 1232g; 34 C.F.R. Part 99.

An exception exists when the school district determines that there is an articulable threat to

the health and safety of students; the district may disclose information from education

records to any person whose knowledge of the information is necessary to protect the health

or safety of the student or other individuals. In making a determination, a school district may

take into account the totality of the circumstances pertaining to a threat to the health or safety

http://www.tea.state.tx.us/index2.aspx?id=7089&menu_id=932


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of a student or other individuals. 20 U.S.C. § 1232g; 34 C.F.R. Part 99. Within a reasonable

period of time after a disclosure is made under this exception, the school district must record

in the student’s education records the articulable and significant threat that formed the basis

for the disclosure and the parties to whom information was disclosed. 34 CFR § 99.32(a)(5).

Additionally, a school district may be asked to provide state or federal health authorities

information about staff assignments, student assignments, and daily schedules to determine

the specific individuals who may have come in contact with a student or staff member with

an infectious disease. School districts, even those without present concerns, may want to

examine how this information is stored and retrieved so that it could be readily available in

the case of an urgent public health necessity.

Q: Must the school district tell parents that their child’s information was provided to a local

or state health authority?

A: The school district must provide a parent with any information the parent requests about the

parent’s own child. A school district must maintain a record, kept with the education record

of each student, that indicates all individuals, agencies, or organizations that have requested

or obtained access to a student’s education records, as well as the names of state and local

educational authorities and federal officials and agencies that may make further disclosures

of personally identifiable information from the student’s education records without consent.

A district must obtain a copy of the record of further disclosures maintained by the named

authorities, officials, and agencies and make it available in response to a parent’s request to

review the record. 20 U.S.C. § 1232g; 34 C.F.R. Part 99. In other words, if a parent asks if

their own student’s name was included on a list provided to health officials, the school

district must provide the parent that information; however, the parent would not be entitled to

see the entire list.

For more information about issues related to FERPA, see Family Policy Compliance Office

(FPCO) Website guidance available at www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-h1n1.pdf.

Employee Issues

Q: May a district screen applicants and new employees for potential infection with a

contagious disease?

A: A district may not make medical inquiries of applicants, but may make reasonable inquiries

of individuals who have been offered employment. Any such inquiries must comply with the

Americans with Disabilities Act (ADA). See TASB Policy DBB.

Applicants: Districts may be concerned about hiring foreign nationals who are from

countries that are impacted by a contagious disease. Similarly, a district may be concerned

that a member of an applicant’s household is a national of an affected country or that the

http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-h1n1.pdf


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individual has recently travelled to an affected country. However, such inquiries are strictly

prohibited. An employer may not make medical inquiries of job applicants unless and until

an offer of employment has been made. 42 U.S.C. § 12112(d)(2)(A).

A district should not ask an applicant about his or her medical condition, even if the applicant

is a citizen of a country that is the source of a contagious disease. Similarly, a district should

not inquire about recent travel activities or about the citizenship of members of an applicant’s

household. In addition to potential ADA violations, a district that makes such inquiries risks

claims of national origin and race discrimination.

New employees: The district may make reasonable inquiries after it has extended an offer of

employment. The ADA permits employers to make medical inquiries if all entering employees

in the same job category are subject to the same inquiries and examinations. 42 U.S.C. §

12112(d)(3)(A); 29 C.F.R. § 1630.14(b). Thus, for example, a district may require all new hires

to complete a questionnaire about recent travel or possible exposure to an infectious disease.

If a district determines that a new hire is at risk of developing an infectious disease, the

district may not withdraw the offer of employment unless the district also determines that the

new hire poses a direct threat to the health or safety of the new employee or others (direct

threat is discussed below). Pandemic Preparedness in the Workplace and the Americans

With Disabilities Act, III(A)(3), EEOC (2009): www.eeoc.gov/facts/pandemic_flu.html#18.

In addition, the district must determine whether the direct threat could be eliminated through

reasonable accommodation. In the context of a contagious disease, reasonable

accommodation may include providing leave, or delaying an employee’s start date, until the

completion of an incubation or quarantine period.

Current employees: An employer may make inquiries that are targeted at identifying

current employees who may have been exposed to an infectious disease. Such inquiries

would not be disability-related inquiries. If the CDC or state or local public health officials

recommend that people who visit specified locations remain at home for several days until it

is clear they do not have symptoms of a contagious disease, an employer may ask whether

employees are returning from these locations, even if the travel was personal. Pandemic

Preparedness in the Workplace and the Americans With Disabilities Act, III(B)(8), EEOC

(2009): www.eeoc.gov/facts/pandemic_flu.html#18.

Q: May a district ask a current employee to submit to a medical examination for an infectious

disease?

A: Yes, but only if the district has objective evidence indicating that the employee poses a direct

threat to the health or safety of the employee or others. An employer may require a current

employee to submit to a medical examination if the request is job-related and consistent with

business necessity. 42 U.S.C. § 12112(d). An examination is job-related and consistent with

business necessity when the employer has a reasonable belief, based on objective evidence, that:

http://www.eeoc.gov/facts/pandemic_flu.html#18



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• An employee’s ability to perform essential job functions will be impaired by a medical

condition; or

• An employee will pose a direct threat due to a medical condition. Direct threat means a

significant risk to the health or safety of the individual or others that cannot be eliminated

by reasonable accommodation. 42 U.S.C. § 12111(3).

The employer’s reasonable belief must be based on “objective evidence obtained, or

reasonably available to the employer, prior to making a disability-related inquiry or requiring

a medical examination.” EEOC Enforcement Guidance: Disability-Related Inquiries and

Medical Examinations of Employees under the Americans with Disabilities Act, § B of

“General Principles” (2000), www.eeoc.gov/policy/docs/guidance-inquiries.html#4.

Before asking a current employee to submit to a medical examination, a district should check

its local policy. Most districts have a policy at DBB(LOCAL) that authorizes the

superintendent or designee to require employees to submit to medical examinations if the

employee poses a direct threat to the health or safety of the employee or others.

Q: How can a district determine whether an employee poses a direct threat with respect to a

contagious disease?

A: In the context of an infectious disease, the determination of whether an employee poses a

direct threat is a two-part analysis. First, the employer must determine whether the infectious

disease poses a significant risk to the health or safety of the individual or others that cannot

be eliminated by reasonable accommodation. Second, the employer must determine whether

there is objective evidence that the specific employee may pose a risk of contagion. Both

determinations should be based on objective, medical evidence, not on stereotypes or

generalizations about members of specific racial, ethnic, or other protected groups.

The EEOC has stated that employers should rely on the latest information from the CDC and

state or local public health authorities: “[E]mployers are expected to make their best efforts

to obtain public health advice that is contemporaneous and appropriate for their location, and

to make reasonable assessments of conditions in their workplace based on this information.”

Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, EEOC

(2009): www.eeoc.gov/facts/pandemic_flu.html#18.

Assessments of whether an employee poses a direct threat in the workplace must be based on

objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a

specific disability or disabilities. Pandemic Preparedness in the Workplace and the

Americans With Disabilities Act, EEOC (2009): www.eeoc.gov/facts/pandemic_flu.html#18. EEOC regulations identify four factors to consider when determining whether an employee

poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential

harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential

harm. 29 C.F.R. pt. 1630 app. § 1630.2(r).

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Q: Can we require an employee whom we suspect of having an infectious disease to stay home?

A: Yes, but only if the employee poses a direct threat to the health or safety of students,

employees, or others. The district should rely on current medical knowledge and objective

evidence, not on speculation, conjecture, or assumptions, in determining whether an

employee poses a direct threat.

If a district determines that an employee poses a direct threat, the district should first solicit

voluntary exclusion. If an employee refuses to remain home, the district may consider

involuntary exclusion based on a determination that an employee poses a direct threat to the

health or safety of the employee or others in the workplace. The determination that an

individual poses a ‘direct threat’ must be based on an individualized assessment of the

employee’s present ability to safely perform the essential functions of the job. 42 U.S.C. §

12111(3); 29 CFR § 1630.2(r). In other words, there must be an objective basis for the

district’s concern that an individual presents a threat of infecting others.

TASB recommends that districts work with their local health departments and other qualified

medical personnel in determining whether an individual should be asked to stay home. A

district should also consult its school attorney before imposing an involuntary exclusion.

Q: If we require an employee to stay home against his or her wishes, can we require the

employee to use accrued leave?

A: Yes, if the employee is verifiably sick. The district should apply its usual policies and

practices relating to district-initiated exclusions. In most districts, policy DBB(LOCAL)

allows an employee to be placed on paid administrative leave while awaiting results of a

medical examination. If the results are that the employee has an infectious disease, the

district has a legal basis for requiring the employee to use accrued leave. If the exclusion is

merely precautionary, however, the district should consider maintaining the employee on

paid administrative leave.

Q: Can we take disciplinary action against employees who refuse to come to work because of

concern about contracting an infectious disease?

A: Maybe, but the district should consider the reasonable accommodation requirements of the

Americans with Disabilities Act. As a general rule, a district may discipline an employee who

refuses to come to work if the district remains open, unless the employee is eligible for leave.

However, a district must reasonably accommodate physical and mental impairments. Some

employees may have physical conditions that preclude them from risking exposure to a

contagious disease. Similarly, an employee may have extreme anxiety or another mental

impairment associated with fear of exposure to contagions. Reasonable accommodation may

include excusing an employee from work due to a mental or physical impairment associated

with an infectious disease—even if the employee has no available paid leave.


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Q: Is a district required to pay employees who do not work while the district or a campus is

closed in connection with an infectious disease?

A: The answer depends on the employee’s status under the Fair Labor Standards Act (FLSA)

and the amount of time the district or campus is closed.

Nonexempt employees: The FLSA does not require a district to pay nonexempt employees

if the district is closed, even if the employees would normally be scheduled to work.

Nonexempt employees include both hourly employees and salaried employees whose duties

do not qualify them for exemption from the FLSA’s minimum wage and overtime

requirements. In school districts, nonexempt employees include bus drivers, cafeteria

workers, clerical staff, and instructional aides. Whether the district is closed for part of a

day, part of a week, or a full week or more, the law does not require the district to pay these

employees for time they do not work.

A district may wish to pay nonexempt employees who are idled during a school closing, even

if the district is not legally-required to pay them. This topic is addressed below.

Exempt employees: The rules for employees who are exempt from the minimum wage and

overtime laws depend on whether the employee is: (a) an educator; or (b) another exempt

employee. State law requires districts to employ educators under contracts that provide for a

minimum of 187 days of service. The commissioner may reduce the number of days of

service below 187 due to a calamity, but such a reduction does not reduce an educator’s

salary. It is not clear whether a district may reduce the days of service to an amount that is

above 187—for example, a three-day reduction in days of service for an employee whose

contract specifies 192 days of service. A district who is facing such a situation should

consult legal counsel.

For exempt employees who are not employed under contracts, such as business managers and

transportation directors, the analysis depends on whether the district is closed for a partial or

full workweek. If an exempt employee works any part of a workweek—e.g., if a district is

closed for only part of a week—the FLSA mandates that these employees be paid their full

salaries. If a district is closed for a full workweek and an exempt employee performs no

work, the FLSA does not require the district to pay the employee.

Q: Is it permissible for a district to pay employees who do not work while the district is closed?

A: Yes, if the district follows the proper procedures. A district may pay employees even if it is

not legally-obligated to pay them, but the district must take steps to avoid an improper use of

public funds. Specifically, the board must: (1) determine that the expenditure serves a public

purpose; (2) retain sufficient control over the expenditure to ensure that the public purpose is

accomplished; and (3) ensure that the district receives a return benefit. In the case of

temporary closings due to outbreaks of infectious disease, some boards have concluded that

paying employees for hours not worked increases morale and reduces employee turnover.


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If a district chooses to pay idled employees, the board should adopt a resolution or similar

action at an open meeting that complies with the Texas Open Meetings Act, unless the district

has previously adopted a blanket policy provision for continuing pay during emergency school

closings. The resolution should address, at a minimum: (1) the public purpose served by

continuing wage payments; (2) which employees will continue to receive wage payments; (3)

whether employees who will be required to work while the school is closed will receive

premium payments; and (4) the duration of the payments (which can be revisited if the district

is required to remain closed for longer than anticipated). The third factor—premium payments

to employees who work while school is closed—is discussed below.

For staff employed at will, such as custodians, premium pay can be authorized by adopting a

board resolution as described. However, premium pay for contract employees may require a

public hearing if the district does not already have a blanket policy. The requirement to hold

a public hearing is addressed in TASB Legal Services’ paper, Mid-Year Pay Increases,

www.tasb.org/Services/Legal-Services/TASB-School-Law-

eSource/Personnel/documents/mid_year_pay_increases_april14.pdf.

Q: Can a district pay a premium to employees who are required to work while the district is

closed?

A: Yes. A district may pay a premium to employees who work during difficult times. For

example, some employers pay hourly employees who work during closures a premium of time

and one-half for regular hours. A district should be mindful that premium payments may affect

an employee’s hourly rate for overtime purposes during the relevant time period. Districts may

also pay a bonus or premium to exempt employees without endangering their exempt status.

Because a district is not legally required to pay a premium, the decision should be made in

advance and should include the safeguards of public funds described in response to the

previous question. Compensation during school closings may already be addressed in local

policy, typically at DEA(LOCAL). If your district has not adopted a local policy regarding

disaster pay and wishes to do so, the district’s policy administrator should consult its TASB

policy consultant for assistance.

Q: Does FMLA leave continue to run while a district is closed?

A: Maybe. Whether a closure counts against an employee’s FMLA leave entitlement depends

on the duration of the closure.

Closures of less than one week: The FMLA regulations do not specifically address the

impact of closures of less than a week. The regulations do, however, address the impact of

holidays. Extrapolating from the rules on holidays, a closure during a week of FMLA leave

has no effect if the employee is taking leave in increments of one week or more; the week is

counted as a week of FMLA leave. If, on the other hand, an employee is using FMLA leave

http://www.tasb.org/Services/Legal-Services/TASB-School-Law-eSource/Personnel/documents/mid_year_pay_increases_april14.pdf

http://www.tasb.org/Services/Legal-Services/TASB-School-Law-eSource/Personnel/documents/mid_year_pay_increases_april14.pdf


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in increments of less than one week, the closure will not count against the employee’s FMLA

entitlement unless the employee was otherwise scheduled and expected to work on the day

school was closed.

Closures of more than one week: The FMLA regulations address situations where an

employer’s business activity has temporarily ceased and employees generally are not

expected to report to work. According to the regulations, closures of a week or more do not

count toward an employee’s FMLA leave.

Q: Can employees use leave if the district is open, but they are unable to report to work for

reasons related to illness or observation?

A: Maybe, depending on the district’s local leave policy. During an outbreak, some employees

will miss work because they are sick, because a family member is sick, or because their

children’s schools and daycare facilities are closed. Employees may use their personal leave

for any reason, subject to local limits on duration and scheduling of discretionary leave. For

nondiscretionary leave, districts should follow their normal leave policies for employees who

miss work due to an illness.

If the employee or family member is sick, the employee may be able to access state or local

leave, subject to the district’s usual medical certification requirements. Depending on the

severity of illness, the employee may also be able to access Family and Medical Leave Act

and/or temporary disability leave.

Use of leave for child care purposes is more complicated. Most district’s DEC(LOCAL) policies

specify that nondiscretionary leave may be taken for the same reasons and in the same manner as

state sick leave accumulated before May 30, 1995. State sick leave may be taken for, among

other things, family emergency. A district may reasonably interpret the term family emergency to

encompass situations where an employee is unable to work because school or childcare facilities

are closed due to an outbreak of infectious disease. This is a local decision. Another option is

for the district to waive limits on the use of discretionary leave. Many districts have local

policies that limit the number of consecutive days an employee may use discretionary leave. The

board may opt, through formal vote, to waive or suspend these limits to allow employees who

are unable to work for child care reasons relating to an outbreak to use that leave. If a district

chooses to waive limits for these reasons, the district should also specify the documentation it

will require to support the use of discretionary leave for child care purposes.

Q: Should districts be concerned about employment discrimination claims in light of concerns

about the spread of contagious diseases?

A: Yes. As discussed above, districts must comply with ADA requirements when conducting

medical inquiries. In addition, districts should be wary of stereotypes of assumptions based

on racial and ethnic characteristics. For example, districts should not assume that employees

who are from countries affected by a specific outbreak, or whose relatives are from affected

countries, are more likely to contract an infectious disease.


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Districts also have a legal obligation to protect employees from workplace harassment based

on medical conditions and racial/ethnic status. An employee who has been exposed to an

infectious disease, or whose family member has been exposed to a disease or who has

become sick, may be targeted by co-workers for harassment or exclusion upon return to

work. Similarly, co-workers may target an employee who is a member of a racial or ethnic

group associated with a particular infectious disease. A district has a duty to protect such an

employee from harassment based on his or her protected status or condition.

Q: If an employee is exposed to an infectious disease in the course and scope of district

employment, is the employee eligible for workers’ compensation benefits?

A: Several factors will determine whether an employee is eligible for workers’ compensation

benefits due to a work-related exposure to an infectious disease. These factors include the

type of disease, the circumstances underlying the exposure, the employee’s usual job duties,

and the carrier’s policies. Districts should contact their workers’ compensation carrier with

questions regarding benefits.

Facility Issues and School Closures

Q: Who in the school district has the authority to close a campus or all campuses temporarily?

A: Just as happens in the event of inclement weather, superintendents have the authority to close

schools on a temporary basis. No school board action is required. The superintendents who

have closed campuses in response to recent concerns about contagious disease have done so

in close consultation with public health officials.

A school district should close school campuses if the CDC or other local or state health

department advises the district to close all or some school campuses to prevent spread of the

disease. A school district should exercise caution in deciding on its own to close school

campuses without concrete information that an infectious disease has affected the school

community. When concerns are identified and communicated broadly through news media

and health agencies, closing campuses may cause a high level of concern about infection

when no risk exists for your immediate community.

If a school district closes campuses or classrooms due to potential exposure to a

communicable disease, the school district should take immediate steps to have the

classrooms and other pertinent areas in the school sanitized and disinfected by school district

janitorial staff or a professional cleaning company.


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Q: Can our school board meet to discuss the emergency or address other issues surrounding

the potential spread of infectious disease?

A: A school board may hold an emergency meeting only if an emergency exists as defined by

the Texas Open Meetings Act. An emergency exists only if immediate action is required

because of: (1) an imminent threat to public health and safety; or (2) a reasonably

unforeseeable situation. Tex. Gov’t Code § 551.045(b). The district must post notice of an

emergency meeting or an emergency addition to an existing agenda no less than two hours

before the scheduled time of the meeting. The notice of the emergency meeting or the

additional agenda item must clearly identify the emergency or urgent public necessity

justifying the short notice. Tex. Gov’t Code § 551.045(a), (c).

It is important to note that the emergency exception to the Texas Open Meetings Act exists to

allow a board to take immediate action to address an emergency. Periodic briefings to update

the board on steps the district is taking to address concerns may be accomplished without a

meeting through informational e-mails or phone calls from the superintendent or designee to

each trustee. Consult your school attorney before relying on the emergency exception.

Q: What if a school district needs to purchase goods or services immediately due to an

emergency?

A: The Texas legislature has provided an avenue for school districts to purchase goods or

services valued over $50,000 without the need for a competitive process in the event of an

emergency. Texas Education Code section 44.031(h) says that if school equipment, a school

facility, or part of a school facility, is destroyed, severely damaged, or experiences a major

unforeseen operational or structural failure, and the board determines that the delay arising

from following the regular purchasing methods would prevent or substantially impair the

conduct of classes or other essential school activities, the board is not required to use one of

the regular purchasing methods required by law to address the issues, even if the value of the

contract exceeds $50,000. Tex. Educ. Code § 44.031(h). This emergency purchasing

exception may or may not apply to goods or services purchased in response to a potential

outbreak. Consult your school attorney before relying on this exception.

Helpful Links:

Center for Disease Control:

www.cdc.gov/vhf/ebola/index.html

www.cdc.gov/non-polio-enterovirus/about/EV-D68.html

www.cdc.gov/flu/index.htm

Texas Department of State Health Services:

www.dshs.state.tx.us/

http://www.cdc.gov/vhf/ebola/index.html


http://www.cdc.gov/flu/index.htm

http://www.dshs.state.tx.us/


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Dallas ISD:

www.dallasisd.org/healthupdates

U.S. Department of Education:

www2.ed.gov/admins/lead/safety/emergencyplan/pandemic/planning-guide/index.html

rems.ed.gov/

Family Policy Compliance Office (FPCO):

www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-h1n1.pdf

Texas School Nurses Organization

txsno.org/files/EHF2100814.pdf

This document is provided for educational purposes only and contains information to facilitate a general

understanding of the law. It is not an exhaustive treatment of the law on this subject nor is it intended to substitute for

the advice of an attorney. Consult with your own attorneys to apply these legal principles to specific fact situations.

http://www.dallasisd.org/healthupdates

http://www2.ed.gov/admins/lead/safety/emergencyplan/pandemic/planning-guide/index.html

http://rems.ed.gov/

http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-h1n1.pdf

http://txsno.org/files/EHF2100814.pdf


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Sample Ebola Screening Questionnaire

Questions

1. Have you or any family member traveled outside of the country within the last 30-60 days?

Yes No (if “no”, enroll student)

1a. If the answer above is yes, please list the countries that you or your family have traveled

to and through. (If a student lists any of the following countries, proceed to question 2: West

Africa, Liberia, Sierra Leone, Guinea, Nigeria, or Spain.)

2. Have you or any family member come in contact with, or provided care to, any person

who was ill during the past 30 days?

Yes No

If the student has answered “no” to the questions above, the student may enroll and attend class

regularly. If the student has answered “yes” to any question above, the school district should

contact the local health department for further information and refer the student and the

student’s family to the local health department.

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